提单并入条款的定性与准据法确定——兼评《鹿特丹规则》第76条

The characterization and the applicable law of incorporation clause——review of Article 76 of the Rotterdam Rules

对中国法院审查涉外提单并入租船合同的案件进行考察,揭示司法实践缺乏对法律选择结果逻辑推理的说理与阐释的问题。中国法律未就并入条款效力问题的准据法作出规定,理论界分歧较大,实践做法并不统一。通过总结提炼中国司法实践经验、对外国立法及实践进行比较研究,提出并入条款是提单所证明的海上货物运输合同的合同条款之一,对该条款的法律效力的审查属于合同解释的范畴,应适用提单运输合同的准据法作为审查提单是否并入租船合同的准据法。《鹿特丹规则》第76条第2款应理解为以公约规定的方式并入到提单中的租船合同仲裁条款不受公约关于仲裁地的限制。

China＇s judicial practice should focus on improving the ability to accurately apply conflict rules concerning foreignrelated civil relationship and enhance the stability and predictability of the application of foreign-related law against the background of ＂One Belt and One Road＂Construction. In most cases,the Court reviewed the incorporation issue arsing from bills of lading without any statement of the approach determining the governing law. Chinese law does not stipulate the applicable law on the issue of Incorporation clause and there is a great disagreement among theoretic circle and judicial practice. By summarizing and refining China＇s judicial experience and conducting a comparative study of foreign legislation and practice,this article proposed that the incorporation clause is one of the clauses of the contract of carriage as evidenced by the bill of lading. The review of the validity and scope of incorporation clause is within the scope of contract interpretation. Therefore the applicable law of the bill of lading shall apply to the incorporation issue. The second paragraph of Article 76 of the Rotterdam Rules should be understood as that the arbitration clause of the charterparty incorporated into the bill of lading in the manner prescribed by the Convention is not subject to the restrictions of the Convention on the place of arbitration.